VPs Hold Key on Filibuster Change
Early in his second term as vice president, John Adams lamented to his wife, Abigail, that he held “the most insignificant office that ever the invention of man contrived or his imagination conceived.”
It’s not that he hadn’t tried to make more of the position. When he came to the Senate to preside over its proceedings as the first vice president, Adams frequently inserted himself into its debates, even to the point of urging defeat of legislation he opposed. The Senate became so irritated that it prepared a resolution to effectively silence him on all but procedural matters. That mere threat had its desired effect: Adams hushed up.
The constraints on vice presidents as presiding officers of the Senate came to mind recently when former House Parliamentarian Charles W. Johnson called attention to a 1957 incident that seems to depart from the norm. At the opening of the 85th Congress in January 1957, Vice President Richard M. Nixon offered two advisory opinions in response to parliamentary inquiries from a group of senators intent on amending the Senate filibuster rule.
The more relevant inquiry, posed by Sen. Hubert H. Humphrey, D-Minn., was about the procedural status of a pending motion to “take up for immediate consideration the adoption of rules for the Senate of the 85th Congress.” Nixon opined that while the Senate is a continuing body and its rules carry forward from one Congress to the next, “the right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules . . . cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress.” In other words, the two-thirds vote to end debate under Rule 22 (the cloture rule for filibusters) “is, in the opinion of the chair, unconstitutional” in a new Congress, though under the precedents “the question of constitutionality can [ultimately] only be decided by the Senate itself, and not by the chair.”
The former House parliamentarian expressed puzzlement as to why this incident does not appear in Senate precedents. Was Nixon acting on advice from the parliamentarian or on his own? I posed these questions to Senate Historian Donald A. Ritchie, who offered in response his oral history interview with former Senate Parliamentarian Floyd M. Riddick. When Ritchie asked the same question that Parliamentarian Johnson had raised, Riddick explained that advisory opinions are not included in Senate precedents.
He went on to recall that he had been informed in advance of the reformers’ parliamentary inquiries, and he spent more than 40 hours in discussions with Nixon on the pros and cons of possible responses. During those discussions, Riddick said Nixon was interrupted frequently by phone calls from Dwight D. Eisenhower administration officials pressuring him to issue a ruling favorable to filibuster reform, thereby making subsequent passage of civil rights legislation more likely.
Nixon alone made the final decision, Riddick said, and, judging from Riddick’s later comments, it was contrary to what the parliamentarian favored.
Majority Leader Lyndon B. Johnson, D-Texas, moved to table the rules debate motion and obtained unanimous consent to bring his tabling motion to a vote the next day. The motion to table was handily adopted 55-38, meaning Nixon was not forced to convert his advisory opinion into a formal ruling. LBJ would later explain how he used this threatened change in filibuster rules to persuade Southerners not to filibuster the 1957 Civil Rights Act (only Sen. Strom Thurmond, D-S.C., did).
Nixon’s advisory opinion had legs. (Today it is known as the “constitutional option” or the “nuclear option,” depending on your point of view.) In 1967, Humphrey — then vice president — avoided ruling on the question of the vote threshold for closing debate on Senate rules by putting the point of order to a direct Senate vote. However, in January 1969 he was forced to rule on a cloture motion, and he held that only a majority was needed to end debate. Humphrey’s decision was overturned on appeal.
In 1975, Vice President Nelson A. Rockefeller offered Nixon’s advisory opinion during debate on changing the cloture rule’s threshold from a two-thirds vote to a three-fifths vote. The Senate twice tabled points of order against a motion to close debate by majority vote. However, realizing this set a dangerous new precedent, Senate leaders had those votes vitiated in return for assurances that the rule change would be adopted after a regular cloture vote. (Left intact was a two-thirds cloture requirement for rules changes.)
On opening day of the 113th Congress, Vice President Joseph R. Biden Jr. will hold the key to this long-running dispute if Majority Leader Harry Reid, D-Nev., proceeds to amend the cloture rule by circumventing the supermajority hurdle for ending debate. Biden can either rule on a point of order or put the constitutional question directly to a Senate vote. A Senate majority will ultimately decide whether to preserve the status quo or usher in a constitutional nirvana or nuclear winter.
In the past, the Senate has stepped back from the abyss, fully understanding that today’s majority is tomorrow’s minority. Once the rules are opened to change willy-nilly, the Senate will become more like the House, with a different rule for every bill. May cooler heads prevail.
Don Wolfensberger is a senior scholar at the Woodrow Wilson Center, a resident scholar at the Bipartisan Policy Center and former staff director of the House Rules Committee.